Ctr. For Food Safety v. Vilsack

• Decision Date: 25 February 2011
• Docket Number: 10–17722.,Nos. 10–17719,s. 10–17719
• Citation: 636 F.3d 1166
• Parties: CENTER FOR FOOD SAFETY; Organic Seed Alliance; Sierra Club; High Mowing Organic Seeds, Plaintiffs–Appellees,v.Thomas J. VILSACK, Defendant,andMonsanto Company; American Crystal Sugar Company; Syngenta Seeds, Inc.; Betaseed, Inc., Intervenor–Defendants–Appellants.Center for Food Safety; Organic Seed Alliance; Sierra Club; High Mowing Organic Seeds, Plaintiffs–Appellees,v.Thomas J. Vilsack, Defendant–Appellant,andMonsanto Company; American Crystal Sugar Company; Syngenta Seeds, Inc.; Betaseed, Inc., Intervenor–Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

636 F.3d 1166

72 ERC 1257

11 Cal. Daily Op. Serv. 2612

2011 Daily Journal D.A.R. 3110

CENTER FOR FOOD SAFETY; Organic Seed Alliance; Sierra Club; High Mowing Organic Seeds, Plaintiffs–Appellees,

v.Thomas J. VILSACK, Defendant,andMonsanto Company; American Crystal Sugar Company; Syngenta Seeds, Inc.; Betaseed, Inc., Intervenor–Defendants–Appellants.Center for Food Safety; Organic Seed Alliance; Sierra Club; High Mowing Organic Seeds, Plaintiffs–Appellees,

v.Thomas J. Vilsack, Defendant–Appellant,andMonsanto Company; American Crystal Sugar Company; Syngenta Seeds, Inc.; Betaseed, Inc., Intervenor–Defendants.

Nos. 10–17719

10–17722.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 15, 2011.Filed Feb. 25, 2011.

Robert J. Lundman, Department of Justice, Washington, D.C., for the federal defendants-appellants.Richard P. Press, Latham & Watkins, L.L.P., Washington, D.C., for the intervenor defendants-appellants.Paul H. Achitoff, Earthjustice, Honolulu, HI, for the plaintiffs-appellees.Appeal from the United States District Court for the Northern District of California, Jeffrey S. White, District Judge, Presiding. D.C. No. 3:10–cv–04038–JSW.Before: MARY M. SCHROEDER and SIDNEY R. THOMAS, Circuit Judges, and MARK W. BENNETT, District Judge.^*

OPINIONTHOMAS, Circuit Judge:

The Department of Agriculture's Animal and Plant Health Inspection Service (“APHIS”) and Intervenors Monsanto et al. appeal the district court's decision granting a preliminary injunction that mandates the destruction of juvenile Roundup Ready sugar beets planted pursuant to permits issued by the agency. Because the plaintiffs have failed to demonstrate irreparable harm, we reverse and vacate the preliminary injunction and direct that the permits be given full force and effect.

I

Olivier de Serres, the father of French agriculture, exclaimed in 1600 of the sugar beet that “this choice food yields a juice like sugar syrup when cooked.” More than a century later, the German scientist Andreas Marggraf demonstrated that the sweet-tasting crystals obtained from beet juice were the same as those from sugar cane. Necessity being the mother of invention, it took a trade blockade in the Napoleonic era to accelerate the production of sugar from beets.

At present, the United States meets the considerable demand for domestic refined sugar by producing refined sugar from domestic sugar beets, refining raw cane sugar produced by domestic and foreign sugarcane producers, and importing refined cane sugar. About 44% of the domestic refined sugar supply comes from sugar beets. The contribution of the sugar beet to the national agricultural economy is, to say the least, considerable.

The sugar beet is a biennial crop which develops a sugar-rich tap root in the first year (the vegetative stage) and a flowering seed stalk in the second year (the reproductive stage). Early in its development, it is known as a “steckling,” i.e. a small, juvenile seedling that has grown neither a root nor seeds. When the beet matures, its root is harvested and processed into sugar; the pulp is used for food. Sugar beets grown for their root crop are grown only through the vegetative stage, maximizing their sugar content.¹

If allowed to reach the reproductive stage, a sugar beet uses the stored sugar to grow a seed stalk, a process known as “bolting.” Sugar beets are largely wind pollinated, though their pollen may also be dispersed by insects, and they are sexually compatible with certain other beet ( beta vulgaris ) crops, such as table beets and Swiss chard.

Weeds significantly reduce sugar beet yields and constitute a serious problem for farmers. Farmers often use herbicides, including “Roundup” products, to stop weeds from germinating.

In 1988, Monsanto and KWS SAAT AG (“KWS”), the parent company of Betaseed, developed Roundup Ready sugar beets, which are genetically engineered to tolerate glyphosate, the active ingredient in “Roundup” herbicides. Monsanto owns the intellectual property in the gene for glyphosate tolerance; KWS inserted that gene into sugar beets. Together, they developed a particular variety of Roundup Ready sugar beet, called “event H7–1,” by transforming a KWS proprietary line of sugar beets. With the Roundup Ready sugar beet's glyphosate-tolerant trait, farmers can treat their fields with Roundup products to eliminate weeds without harming the (resistant) sugar beets. The sugar produced from Roundup Ready sugar beets is identical to sugar processed from conventional sugar beets, and has been approved for food safety in the United States and the European Union.

II

The development of Roundup Ready sugar beets is subject to federal regulation. Congress passed the Plant Protection Act, 7 U.S.C. § 7701 et seq., to protect the agriculture, environment, and economy of the United States from “plant pests or noxious weeds.” Id. § 7701(1); see also Monsanto v. Geertson Seed Farms, ––– U.S. ––––, 130 S.Ct. 2743, 2750, 177 L.Ed.2d 461 (2010) (describing regulatory scheme). The Act provides that the Secretary of the Department of Agriculture may issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States,” id. § 7711(a), and the Secretary has delegated that authority to APHIS, 7 C.F.R. §§ 2.22(a), 2.80(a)(36). APHIS regulates the “introduction”—i.e., the importation, interstate movement, or release into the environment—of “organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests,” referred to as “regulated articles.” Id. §§ 340.0(a)(2) & n.1, 340.1 (“Part 340”).

Roundup Ready sugar beets were originally “regulated articles” under the Plant Protection Act and accompanying regulations because they were genetically engineered with a gene sequence from a donor organism that is a plant pest. As regulated articles, they could lawfully be planted outdoors (as a confined field release) or moved interstate only if authorized by an APHIS notification or permit. See Id. §§ 340.0(a), 340.3 (notification), 340.4 (permits). In addition, any person could petition the agency to deregulate Roundup Ready sugar beets, in whole or in part. Id. § 340.6.

In deciding whether to issue Part 340 permits or to deregulate a genetically engineered plant variety, APHIS must also comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. See Monsanto, 130 S.Ct. at 2750. NEPA requires an agency to prepare an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An agency need not prepare an EIS for a particular proposal if it finds, on the basis of a shorter “environmental assessment” (“EA”), that the action will not have a significant impact on the environment. 40 C.F.R. §§ 1508.9(a), 1508.13. Additionally, agencies may identify classes of actions that normally do not require the preparation of either an EIS or an EA, called “categorical exclusions.” Id. § 1507.3(b)(2). Categorical exclusions are “categor[ies] of actions which do not individually or cumulatively have a significant effect on the human environment.” Id. § 1508.4.

APHIS has established a categorical exclusion for “[p]ermitting, or acknowledgment of notifications for, confined field releases of genetically engineered organisms and products.” 7 C.F.R. § 372.5(c)(3)(ii).

III

The narrow question presented by this appeal is whether the district court abused its discretion by ordering the destruction of certain permitted juvenile Roundup Ready sugar beet plants. However, the dispute has arisen in a broader context.

The litigation between Plaintiffs, APHIS, and Intervenors concerns the regulation, deregulation, and permitting of Roundup Ready sugar beets. The parties' disputes center on three groups of APHIS decisions: (1) the agency's March 2005 complete deregulation of Roundup Ready sugar beets; (2) its August 2010 issuance of permits authorizing the planting of Roundup Ready sugar beet stecklings in select, remote areas; and (3) recently-finalized February 2011 interim actions to partially deregulate Roundup Ready sugar beets. The present action concerns the permits issued in August 2010.

The March 2005 complete deregulation and February 2011 partial deregulation decisions are not before us. In the litigation known as Sugar Beets I, ² the district court vacated APHIS's March 2005 complete deregulation decision, after ruling that the agency violated NEPA by failing to prepare an Environmental Impact Statement (“EIS”).³ APHIS is currently preparing an EIS in advance of any new decision to fully deregulate Roundup Ready sugar beets, and we do not address any aspect of the Sugar Beets I decision here. ⁴ Nor do we review APHIS's actions announced during the pendency of this appeal, regarding partial deregulation while it prepares the EIS for complete deregulation.⁵

In Sugar Beets II, the district court issued a preliminary injunction in favor of Plaintiffs, requiring the destruction of juvenile sugar beet “stecklings” planted by Intervenors under permits issued by APHIS in September 2010. APHIS issued these Part 340 permits to four seed companies—Intervenors American Crystal Sugar Co., Betaseed, and Syngenta, as well as non-party SES vanderHave USA—which had applied for permission to plant Roundup Ready sugar beet seed in order to grow stecklings. The permits authorize steckling growth on limited acreage in defined geographic locations (in Oregon and Arizona), and include conditions prohibiting flowering or pollination before the permits expire on February 28, 2011. With each permit, APHIS issued NEPA “Decision Worksheets” explaining that limited steckling growth would have no significant environmental impacts.

Less than a week after the permits issued, Plaintiffs filed the present suit, Sugar Beets II, and sought a temporary...